STATE OF NEW JERSEY VS. CHANCE L. HARMON (11-05-1220, CAMDEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2502-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHANCE L. HARMON,

     Defendant-Appellant.
_______________________

                   Submitted April 13, 2021 – Decided May 4, 2021

                   Before Judges Haas and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 11-05-1220.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, on
                   the brief).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Kevin J. Hein, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Chance L. Harmon appeals from an August 3, 2018 order

issued by Judge Gwendolyn Blue denying his petition for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

                                      I.

      Defendant, who was seventeen years old at the time he committed the

underlying offenses was waived to adult court after a hearing.         He was

subsequently charged by a Camden County grand jury in a five-count indictment

with: first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)

(count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count

four); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-

3(b)(2), (3) (count five).

      Prior to trial, defendant underwent a competency examination conducted

by Christine Joseph, Ph.D. In addition to interviewing defendant, Dr. Joseph

considered the extensive discovery materials in the case, as well as defendant's

prior psychiatric, school, and medical records, and also performed a competency

skills assessment.




                                       2                                  A-2502-19
        Dr. Joseph diagnosed defendant with cannabis abuse, a learning disorder,

and behavioral control problems. She also noted that defendant underwent an

intellectual assessment when he was sixteen which concluded that he possessed

a full-scale IQ of sixty-seven, placing him at the high end of the "[m]ild [m]ental

[r]etardation range." Dr. Joseph noted, however, that the psychologist who

performed the prior assessment commented that it did not appear defendant was

"motivated to perform well during testing and although there [was] evidence that

he had learning problems throughout school, [his] opinion was that his actual

intellectual abilities f[e]ll in the [b]orderline range . . . or higher." To this point,

the psychologist considered the evaluation "to be an underestimation of his

cognitive functioning."

        Dr. Joseph concluded that defendant was competent, understood the

charges against him, and had the ability to participate in an adequate

presentation of his defense. The court agreed with Dr. Joseph and deemed

defendant competent to stand trial. 1

        At trial, the State presented evidence that defendant fatally shot the victim

seven times at close range after learning that the victim was in a relationship

with a woman with whom defendant had a prior sexual relationship.                  The


1
    Defendant has not provided us with a transcript of the competency proceeding.

                                           3                                     A-2502-19
shooting was witnessed by four of the victim's friends who positively identified

defendant as the shooter, both to the police and at trial. At trial, defendant

contended the State failed to establish beyond a reasonable doubt that he was

the killer.

      At the conclusion of the State's case, the judge granted defendant's motion

to dismiss counts four and five of the indictment. The jury then found defendant

guilty of counts one, two, and three. We affirmed defendant's convictions, but

remanded for a new sentencing hearing. State v. Harmon, No. A-3338-12 (App.

Div. June 3, 2015).     The Supreme Court denied defendant's petition for

certification. State v. Harmon, 

223 N.J. 404

(2015).

      On remand, after considering and weighing the applicable aggravating and

mitigating factors, Judge Blue, who was also the trial judge, resentenced

defendant to a forty-year aggregate prison term. On February 8, 2016, defendant

filed a pro se petition for PCR alleging ineffective assistance of counsel for

failing to obtain affidavits from additional witnesses and appeal his

resentencing.

      Judge Blue granted his petition in part, permitting defendant to appeal

issues related to his resentencing, and provided him thirty days from the

completion of appeal to reinstate his PCR petition and raise any remaining


                                       4                                   A-2502-19
ineffective assistance of counsel arguments. We considered defendant's appeal

and affirmed, finding his sentence was not manifestly excessive or unduly

punitive. State v. Harmon, No. A-3978-16 (App. Div. Dec. 5, 2017). Defendant

subsequently reinstated and amended his PCR petition.

      In his amended PCR petition, defendant alleged that his trial counsel was

ineffective for failing to:   1) investigate and assert a diminished capacity

defense, 2) communicate and visit with him when he was detained, 3) poll the

jury after the verdict, 4) investigate and present mitigating factors at

resentencing, and 5) obtain affidavits from adverse witnesses. He also claimed

the court improperly answered a question during deliberation with respect to his

"state of mind."

      Judge Blue issued an oral opinion and order denying defendant's PCR

petition without an evidentiary hearing. Applying the well-recognized two-

prong test to establish ineffectiveness of counsel, Strickland v. Washington, 

466

U.S. 668

, 687 (1984) and State v. Fritz, 

105 N.J. 42

, 58 (1987), the judge found

there was no prima facie claim that trial counsel's performance was deficient or

that the alleged deficient performance prejudiced his defense.

      Judge Blue rejected defendant's argument that his trial counsel was

ineffective for failing to pursue a diminished capacity defense. The judge



                                       5                                   A-2502-19
explained that defendant failed to satisfy prong one of the Strickland/Fritz test

because he failed to provide an affidavit or competent evidence that he suffered

from a mental condition that would support a diminished capacity defense.

Before reaching this conclusion, the judge exhaustively reviewed and

considered Dr. Joseph's report and determined it did not establish that defendant

suffered from "any type of psychiatric or mental health conditions."

      The judge similarly rejected defendant's claim that his trial counsel was

constitutionally ineffective for failing to communicate or visit with him. Judge

Blue characterized defendant's contention as an unsupported "blanket"

allegation. The judge specifically noted numerous instances when counsel

requested trial adjournments to confer with defendant, including when counsel

visited defendant in his holding cell during the trial proceedings. The judge also

noted that at no point during the trial or remanded proceedings did defendant

complain about his trial counsel's performance, including any purported lack of

communication.     Further, Judge Blue found that based on the trial record,

defendant and counsel specifically discussed what the judge characterized as an

alibi defense.

      Judge Blue also concluded that even assuming counsel's failure to

communicate with him constituted ineffective assistance of counsel under prong


                                        6                                   A-2502-19
one, defendant failed to establish that he suffered any prejudice because he did

not identify specifically any action counsel should have taken. Because no

prima facie claim of ineffective assistance of counsel was established, the judge

applied State v. Preciose, 

129 N.J. 451

, 463 (1992), and concluded defendant

was not entitled to an evidentiary hearing.

      In his appeal to us, defendant raises only two of the arguments he made

before Judge Blue. 2 Specifically, he contends:

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY        HEARING  BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE       OF       TRIAL  COUNSEL'S
            INEFFECTIV[E]NESS.

            A. Trial Counsel Failed To Pursue A Diminished
               Capacity Defense.

            B. Trial Counsel Failed To Adequately Communicate
               With Defendant, Including Never Visiting Him In
               Jail And Not Sending Him A Copy of Discovery.

      We disagree with defendant's contentions and affirm substantially for the

reasons set forth by Judge Blue in her comprehensive and thorough August 3,



2
   We accordingly do not address Judge Blue's rejection of defendant's other
arguments because defendant does not challenge the court's determinations on
those issues on appeal. Issues not briefed on appeal are deemed waived.
Jefferson Loan Co. v. Session, 

397 N.J. Super. 520

, 525 n.4 (App. Div. 2008);
Zavodnick v. Leven, 

340 N.J. Super. 94

, 103 (App. Div. 2001).

                                       7                                   A-2502-19
2018 oral decision.      We provide the following comments to amplify our

decision.

                                       II.

      A claim for ineffective assistance of counsel must satisfy the two-part test

pronounced in Strickland by first demonstrating that "counsel's representation

fell below an objective standard of reasonableness." 

Strickland, 466 U.S. at 688

;

see also 

Fritz, 105 N.J. at 58

. A defendant must overcome a strong presumption

that counsel rendered reasonable professional assistance. 

Strickland, 466 U.S.

at 689

. Under the second prong, a defendant must demonstrate a "reasonable

probability" that his counsel's errors prejudiced the defense such as to deprive

defendant of a fair and reliable outcome. 

Strickland, 466 U.S. at 687

, 694.

      A defendant bears the burden of introducing evidence of mental disease

or defect. State v. Baum, 

224 N.J. 147

, 161 (2019). Diminished capacity is

defined as:

              Evidence that the defendant suffered from a mental
              disease or defect is admissible whenever it is relevant
              to prove that the defendant did not have a state of mind
              which is an element of the offense. In the absence of
              such evidence, it may be presumed that the defendant
              had no mental disease or defect which would negate a
              state of mind which is an element of the offense.

              [N.J.S.A. 2C:4-2.]



                                         8                                  A-2502-19
      Diminished capacity does not "excuse the defendant from criminal

responsibility" but rather "negate[s] a mental element of the crime charged,

thereby exonerating the defendant of that charge." State v. Breakiron, 

108 N.J.

591

, 601 (1987) (citations omitted). "Diminished capacity is a 'failure of proof'

defense [meaning that] evidence of defendant's mental illness or defect serves

to negate the mens rea element of the crime." State v. Reyes, 

140 N.J. 344

, 354

(1995) (citation omitted).

      Here, defendant's claim that his trial counsel was ineffective for failing to

pursue a diminished capacity defense finds no support in the record. Defendant's

amended petition merely states in conclusory fashion that counsel was

ineffective for "failing to investigate the defense of diminished capacity."

Defendant does not even allege, let alone provide factual support, by way of

affidavit, competent medical evidence, or expert opinion, that, at the time of the

incident, he suffered from an acute or chronic mental disease or defect that

negated his state of mind necessary to commit the offenses charged. See State

v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999) (explaining the facts

supporting a PCR petition must be "supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification").


                                        9                                    A-2502-19
      Rather, defendant relied solely on Dr. Joseph's report, prepared in the

context of his competency proceeding, which makes no mention of whether

defendant's mental state was sufficiently impaired at the time he committed the

offense to support a diminished capacity defense. Although Dr. Joseph's review

of defendant's medical history contained an embedded hearsay report of an exam

conducted nearly a year prior to the offenses, which placed defendant at the high

end of mild mental retardation, Dr. Joseph concluded that defendant showed no

evidence of "emotional lability" and did not exhibit "overt signs or symptoms

related either [of] a mood disorder or a psychotic disorder." According to Dr.

Joseph, defendant denied being paranoid or having auditory or visual

hallucinations. Further, as noted, the prior assessment explained that defendant

did not "appear motivated to perform well during testing."

      Moreover, defendant's primary defense during trial, by way of extensive

cross-examination of the multiple eyewitnesses, was that the State failed to

establish he killed the victim. A diminished capacity defense, however, is based

on the factual predicate that defendant committed the offense but did not possess

the requisite mens rea to establish his guilt. Here, defendant fails to explain how

his counsel was deficient for pursuing one defense over the other. It is well

settled that "purely speculative deficiencies in representation are insufficient to


                                       10                                    A-2502-19
justify reversal." 

Fritz, 105 N.J. at 64

; see also State v. Arthur, 

184 N.J. 307

,

327-28 (2005).

                                       III.

      We also agree with Judge Blue that defendant failed to establish a prima

facie case of ineffective assistance of counsel related to his claims that counsel

inadequately communicated with him. First, Judge Blue noted that the record

contradicted defendant's claim, specifically noting that defendant spoke with

counsel regarding his defense, and observed the numerous times counsel sought

adjournments to communicate with defendant along with those instances he

visited with defendant during trial.

      Second, even were we to indulge defendant's claim that he satisfied the

first prong of the Strickland/Fritz test, we agree with the judge that defendant

failed to establish he was in any way prejudiced by such ineffectiveness had

counsel met with him more frequently.         His petition contains bare bones

assertions and fails to identify any witnesses, evidence, or arguments that show

a "reasonable probability" the outcome of his proceedings would have been

different. 

Strickland, 466 U.S. at 694

; see also 

Cummings, 321 N.J. Super. at

170

. Judge Blue therefore correctly denied the claim without an evidentiary

hearing. See 

Preciose, 129 N.J. at 462

.



                                        11                                  A-2502-19
      To the extent we have not expressly addressed any of defendant's

remaining arguments, it is because we have concluded they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                      12                                   A-2502-19

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